Case against Scotland’s third verdict not proven, say QCs

Thomas Ross QC

There is no basis for the belief that abolishing the ‘not proven’ verdict in Scots law will lead to more people being found guilty of rape and could in fact result in “rogue convictions”, leading criminal lawyers have told Scottish Legal News.

Responding to Gordon Jackson QC’s suggestion that the ‘not proven’ verdict be abolished, criminal silks Thomas Ross QC and Brian McConnachie QC said Scotland’s three-verdict system should be preserved.

Mr Ross said he suspects that Mr Jackson, who is the Dean of the Faculty of Advocates, holds a view “not shared by many current trial counsel” and that whenever abolition of not proven was proposed during his tenure as president of the Scottish Criminal Bar Association, he “was always encouraged by our members to resist those proposals with vigour”.

He suggested that rogue convictions could result from the abolition of not proven because judges often tell juries the only difference between the two acquittal verdicts is one of emphasis, “which might suggest that a ‘not guilty’ verdict is something approaching a declaration of innocence”.

He added: “A jury that has found reason in the evidence to disapprove of the accused’s conduct at the relevant time, might be understandably reluctant to certify him as ‘innocent’ by way of a not guilty verdict. If the only other available verdict was one of guilty then injustice could clearly result.”

Mr Ross said the question for the jury is simply whether the Crown has succeeded in proving the charge beyond a reasonable doubt.

“The answer to that question is either yes, proven, or no, not proven,” he said.

Advocating that the current three-verdict system be preserved, however, he said not guilty would survive “to describe the situation where the Crown accepted the plea in those terms, or the trial judge agreed that there was insufficient evidence to allow the case to go to the jury”.

Brian McConnachie QC

Mr McConnachie agreed that the current system works well. He said that “in the vast majority of cases, those of us involved in the criminal justice system believe that juries get it right”.

While he acknowledged that it is possible rogue convictions could result from abolition, he pointed out that “one would never know whether abolishing not proven resulted in justice not being done for the accused”.

However, he added: “I cannot see why we would change the situation to bring about such a possibility.

“The system we have is one that in my view almost always results in justice being done.”

Campaigners for the abolition of the third verdict argue that it allows guilty people to walk free and ensures a low conviction rate in rape trials, where it is disproportionately used.

Mr McConnachie said: “I consider the potential abolition of the not proven verdict to be a more complicated matter than the campaign for its removal might suggest.”

There is no logical basis for the assumption that, in the absence of the not proven verdict, juries will deliver verdicts of guilty instead of not guilty in rape cases, he added.

“In a trial, a jury are advised that both not guilty and not proven are verdicts of acquittal and other than in exceptional circumstances the accused cannot be tried for the same offence again. Sometimes, but not always, they are told if they are acquitting which verdict they choose is a matter for them and it is sometimes described as a matter of emphasis.

“The position could not in my view be clearer for them. They are acquitting. The Crown have failed to satisfy them to the required standard, beyond a reasonable doubt, that the case has been proven or established against the accused.”

If not proven did not exist in such a situation, “the logical conclusion is the verdict would be not guilty”, he said.

He also cautioned against the view that juries fail to grasp legal concepts.

“It is sometimes said juries do not understand the verdict. I think this is to underestimate the people who sit on juries.

“Juries are asked every day to deal with complicated legal concepts such as the doctrine of mutual corroboration, the Moorov doctrine, art and part guilt and the mens rea for murder.

“No one ever thinks they cannot as a body understand these concepts and reach a proper verdict based upon that understanding.”

He agreed with Mr Jackson, however, that the system for majority verdicts north of the border requires reform. In Scotland, an accused can be convicted of murder and sentenced to a lifetime in custody in circumstances where seven people consider them to be innocent because only a simple majority is required.

He said: “There is something about that which does not sit well. In contrast, in England, if the judge so directs a majority verdict can be returned but the minimum majority is 10-2.”

Where a majority cannot be reached south of the border then a hung jury results, which may prompt a retrial.

“One can immediately see the potential for a substantial increase in the costs of such a system which, given the current Scottish government’s apparent determination to spend as little on justice as possible, seems unlikely to find favour,” Mr McConnachie said.

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